You represent pharmaceutical companies in large-scale patent litigation. How do you anticipate that the covid IP waiver might hit the life sciences scene?
Actually, the proposed covid IP waiver likely will have little impact on the United States and US patent litigation. In contrast, covid itself has greatly affected intellectual property. For example, because of the significant investments made by pharmaceutical companies, there has been a notable increase in patent filings concerning covid vaccines, antibody therapies and antiviral compounds. We have also already seen an increase in patent litigation around those covid-related patents.
Another way that the pandemic has affected litigation is that some, if not many courthouses have been closed, resulting in a backlog of trials of all types. So, getting a case on the trial calendar in a reasonable time frame can be a challenge.
Alongside working with pharmaceutical companies, you represent clients in a variety of other industries, including biotechnology, chemicals, consumer goods, energy, industrial equipment and manufacturing, and medical devices. How do you stay abreast of the latest developments?
The most obvious way is to keep abreast of the case law and patent litigation activity. Clients also want their lawyers to understand their business and the economy in general. For that reason, I try to read as many business-related publications as possible, including the Wall Street Journal and websites that are dedicated to the stock market and business activities.
Given your renown as a litigator, what are the top three skills that a world-class litigator needs to hone?
I think the most important skill as a trial lawyer is to be able to communicate complicated concepts simplistically. We work on cases that can have extremely complicated technology, so we devote plenty of time to learn that technology inside and out. The judge, however, does not. They will have many cases and not much time for any individual case. It is therefore crucial to be able to explain complicated technical concepts in a concise way.
The next skill is knowing when to push on the gas as opposed to hitting the brakes. It is usually easy to know when to push on the gas but knowing when to back off and take a less adversarial approach is hard, even though it is often the most effective approach.
Finally, it is important to know how to effectively ask questions, in relation to cross-examining witnesses or interviewing a client to find out information. Those are drastically different settings, but both can be full of pitfalls if not done effectively.
You have served as lead counsel in several Hatch-Waxman cases. What kinds of challenges tend to arise in such litigation – and how can parties best prepare themselves to meet them?
Many types of challenges arise with patent cases. One that is specific to Hatch-Waxman cases is the interplay between the Food and Drug Administration rules and patent litigation. One should always keep in mind that the judge may not be as familiar with said interplay as the litigators, so it is crucial to highlight that interplay throughout the case.
Which aspect of your work do you enjoy most and why?
I love going to trial! That is the ultimate event for trial lawyers. As a senior partner I worked with once pointed out to me: “If you don’t love going to trial, you probably shouldn’t be a trial lawyer.”
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Dominick Conde is co-chair of Venable’s IP division. He primarily represents pharmaceutical companies in large-scale patent litigation and as lead trial counsel in Hatch-Waxman litigation. In addition to pharmaceutical clients, Mr Conde represents clients in the chemicals, consumer goods, energy, industrial equipment and medical devices industries. He graduated with a JD from Franklin Pierce Law Center (1990) and has a BS in Mechanical Engineering from the Rensselaer Polytechnic Institute (1982).